Lawsuit Against City And NIFS Raises Questions About Off-Duty Security Work By City Police

An Indianapolis physician is suing the City of Indianapolis, one of its police officers and the National Institute of Fitness & Sports (NIFS) and its manager in the U.S. federal district court for the Southern District of Indiana, alleging his constitutional rights were violated and his privacy invaded when he was arrested in NIFS' locker room by an undercover Indianapolis police officer and charged with public indecency. A Marion County criminal court later dismissed the charge on the grounds that the State's evidence against him did not demonstrate that a crime was committed. Discovery in the civil case has concluded, and the defendants have filed for summary judgment. Based on the briefs filed by the parties, the case raises serious questions about the relationship of the Indianapolis Metropolitan Police Department and the clients of its police officers who moonlight as private security officers.

According to the plaintiff's brief, NIFS employed off-duty IMPD officers as private security employees for the health club based on the recommendation of Sgt. Jim Waters. NIFS' manager, Jerry Taylor, also requested the assistance of IMPD to investigate allegations that some patrons of the club were engaging in inappropriate behavior, a request granted by Sgt. Waters. Police officers who conducted investigations at the club, numbering four to six, were granted free memberships at NIFS to perform undercover investigations. The value of these free memberships ranged from $5,530 to $10,815 over a 3-year period according to the plaintiff's brief. At least one of those officers asked Taylor to write an "attaboy letter" to his superiors, a request he granted.

To assist IMPD with the investigation, NIFS compiled a "watch list" of patrons to target for inappropriate behavior. A patron landed on the watch list based on such behavior as "following, staring, or getting too close to" other patrons. NIFS refused to furnish the plaintiff a copy of the watch list during discovery but assured plaintiff he was not on the list. Prior to the plaintiff's arrest, however, he had complained to Taylor about another member's concern that Taylor had made "derogatory statements about homosexuals" to another patron in discussing inappropriate sexual behavior in the men's locker room. Taylor made a note of the physician's complaint, but he maintains that he did not target him because of his complaint.

NIFS forwarded the names of people on the watch list to IMPD, and IMPD, breaking with its own policy, shared privileged investigatory information with NIFS that not even criminal defendants are allowed to receive as discovery in their own trial according to the plaintiff's brief. The plaintiff sought discovery of e-mails and communications between IMPD and NIFS, but the documents produced were so heavily redacted the plaintiff's complained they were of little value. The plaintiff's attorneys have asked the Court to sanction the defendants for refusing to supply or destroying the original communications by deeming that they included information targeting the plaintiff for arrest. NIFS also refused to produce a list of off-duty police officers who worked at the club, although the defendants say the arresting police officer was working undercover for the department at the time of the plaintiff's arrest.

Plaintiff claims that Taylor was "morally incensed that homosexual activity was occurring at his facility", referring to it as "perverted male behavior", "problem of perversion" and "male perverts". Plaintiff believes Taylor had a motive to get him arrested after he complained to him about derogatory statements he heard he had made to another patron. Taylor had also complained in notes that some of his own employees at NIFS were "not w[ith] the program."

In the case of the plaintiff, the arresting officer claims he saw him stroking himself and masturbating while showering. The arresting officer concedes that he had to peek through a small opening in the shower curtain for the shower stall in which plaintiff was showering to observe the alleged behavior. The officer claims the plaintiff followed him into the steam room and made repeated eye contact with him without engaging him in conversation. When the officer went to shower, he claims the plaintiff followed him and chose a shower stall diagonally across from his. Through gaps in their respective shower curtains, the officer says he observed the plaintiff make eye contact with him, fondle his genitals and masturbate with an erect penis. The plaintiff was later told by the police officer he was being placed under arrest. He was handcuffed in front of other club patrons, told that his membership privileges were being revoked and hauled away to the police station where he was booked on public indecency charges.

Plaintiff believes that he had a right to solitude and seclusion while he was showering behind a closed curtain, and that the police officer should not have been spying on what he was doing from an opening in his closed shower curtain. The plaintiff complains that the club terminated him without offering him an opportunity to explain his side of the story. NIFS and its manager insist they cannot be liable for violating the plaintiff's constitutional rights because they are not a public actor. The plaintiff, however, maintains that NIFS "conspired or acted in concert" with governmental officials to deprive him of his civil rights. A ruling from the Court on the defendants' summary judgment motion may not come for another three months.

Regardless of whether the plaintiff prevails on the merits of his case, the relationship between IMPD and NIFS raises troubling questions. The employment opportunities, free club memberships and "attaboy" letters NIFS offered to IMPD officers raises potential conflicts of interest in the execution of their law enforcement responsibilities. I have complained in the past that private security companies are able to employ IMPD officers in uniform, using their police patrol cars and equipment, without any compensation to the City. Other cities require payment and, in some cases, controls the off-duty assignments given to its officers. The FOP complains that this would result in the loss of work for city police by driving up the cost of their services and subject the City to liability. As this case demonstrates, the City is being sued for police officers' actions regardless of whether it received any compensation for the police officers' off-duty work. Because of the conflicts of interest which may also arise from their off-duty work, the City clearly needs to adopt policies to protect the public from law enforcement abuses to curry favor with the police officers' off-duty clients.